SITI MAESAROH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 420/2020

[2021] HKCA 307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 420 OF 2020

(ON APPEAL FROM HCAL NO 226 of 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon S T Poon J (giving the Judgment of the Court):

1.  On 21 May 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to extend the time for the applicant to apply for judicial review[1]. The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) given on 11 August 2017 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 30 November 2016 rejecting her non-refoulement claim.

2.  On 2 June 2020, the applicant applied for leave to appeal from the Judge’s decision.  On 27 August 2020, the Judge handed down a decision to extend time for the applicant to file her notice of appeal.  She did so on 2 September 2020. 

3.  The applicant has consented to her appeal being heard by two judges of the Court of Appeal.

4.  The applicant failed to appear at the hearing of this appeal.  Being satisfied that sufficient notice has been given to the applicant of the hearing date, we proceeded to deal with the appeal on the basis of the Notice of Appeal, appeal bundle and written submission lodged by the applicant. 

Background of the applicant

5.  The applicant is a national of Indonesia.  She worked as a domestic helper in Brunei before her marriage in 2000.  In about 2004, she worked as a foreign domestic helper in Taiwan and then in Hong Kong. On 2 July 2011, the applicant entered Hong Kong to work as a foreign domestic helper.  Shortly afterwards on 21 July 2011, the applicant’s employment contract in Hong Kong was terminated.  She did not return to Indonesia but instead overstayed in Hong Kong.  She was later arrested for overstaying in Hong Kong.  On 12 October 2016, she filed her non-refoulement claim form.

6.  The applicant’s claim is based on her fear of being harmed or killed by a creditor of a loan taken out by her husband and her father.  The applicant’s case was set out in detail in [8] of the Director’s decision and [1-3] of the Board’s decision. 

7.  In brief, the applicant’s claim is based on her fear of the threats and danger from a loan shark named Wahyudi.  The applicant’s case, in brief, is that she was born and raised in the Purwokerto Village, Blitar District, East Java Province, Indonesia.  From 1999 to 2011, the applicant worked as domestic helper in Brunei, Taiwan and then in Hong Kong.  In about the end of 2010 while she was working in Taiwan, the applicant was informed by her husband that the applicant’s father as well as her husband had borrowed a loan of 20 million Rupiah from a loan shark called Wahyudi and named the applicant as the guarantor.  Subsequently in about 2011, Wahyudi urged the applicant’s family to repay the loan on three occasions. When Wahyudi was aware that the applicant was the breadwinner of the family, he made verbal threats against the applicant that he would kill her and her family if the loan could not be repaid.  The applicant did not return to Indonesia after the employment contract was terminated for her fear for Wahyudi’s threats.

8.  By his decision dated 30 November 2016, the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3], BOR 2 risk[4] and BOR 3 risk[5] grounds. 

9.  The applicant appealed against the Director’s decision to the Board and she attended a hearing before the Board on 3 August 2017.

10.  By its decision dated 11 August 2017, the Board dismissed the appeal having regard to all applicable grounds.  In short, the Board was not satisfied as to the credibility of a number of aspects of the applicant’s claim. It noted that there was no independent information/evidence or documentation to support or corroborate aspects of her case.  Further, the Board noted that the loan was taken out in about 2010 and Wahyudi’s threats were made in about 2011.  The period of about 5 years from 2011 to the Board’s decision in 2017 was uneventful.  The Board found no evidence of any harm caused by Wahyudi to the applicant or her family.  Therefore, the Board found that any risk of serious harm or death to the applicant by Wahyudi could not be regarded as real.  Having considered the country of origin information (“COI”), the Board was further of the view that state protection and internal relocation options were reasonably available to the applicant. The Board accordingly concluded that none of the available grounds for non-refoulement was made out.

Application for leave to start judicial review

11.  On 13 September 2018, the applicant filed a Form 86 to apply for leave to judicially review against the decisions of both the Director and the Board.  The applicant did not set out in the Form 86 or her affirmation in support of her application any grounds for seeking relief.

The Judge’s Decision

12.  The applicant did not request an oral hearing for her application for leave to apply for judicial review.  The Judge considered the applicant’s application on the papers.  He refused to extend the time for making the application and dismissed the application for leave to apply for judicial review.  His reasons were set out in [11] – [18] of the Form CALL-1[6]:

“11. By then she was already out of time with her application, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

12. In the Applicant’s case, the three-month period within which she was to file her Form 86 expired on 11 November 2017, and hence she was three months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

13. A delay of three months cannot be said to be insignificant, for which the Applicant did not provide any explanation in her affirmation, and as such I do not accept that she has any good reason for her delay. Nor did she put forward any ground for her intended application.

14. As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. As noted above the Applicant did not put forward any ground for her intended challenge, nor did she identify any legal error or procedural unfairness in the Board’s decision, or even any particulars or elaboration as to why it might be considered as unfair or unreasonable, and in the absence of which I do not find any basis or merits in her intended application.

16. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

17. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her delay, I refuse to extend time and accordingly dismiss her application.”

13.  On 27 August 2020, the Judge granted an extension of time for the applicant to appeal the Judge’s decision dated 21 May 2020. The applicant did so on 2 September 2020.

Appeal to Court of Appeal

14.  By a Notice of Appeal filed on 2 September 2020, the applicant appealed against the refusal of leave for judicial review on the following grounds:

(1)  the Board had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  the Adjudicator acted in a procedurally unfair manner;

(3)  the Board’s decision to refuse the applicant’s appeal was unreasonable or irrational in the public law sense, or as a result of procedural errors or unfairness;

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  the applicant was confused and did not understand what happened in the hearing as the hearing bundle was not provided earlier or with interpretation; and

(6)  the Board had significantly relied on the source of news not officially recognized or were hearsay.

Skeleton Submissions

15.  On 8 February 2021, the applicant lodged a skeleton argument, by which she made further complaints of lack of legal and language assistance under the following grounds:

(1)  Her case was not determined fairly.  Without knowing how the case was determined it is not easy for her to appeal against it.  Non-refoulement claimants like her have limited resources.  There should be a proper and fair mechanism that allows unrepresented litigants to understand more about their case.

(2)  If a litigant has not been informed fully of her right and given the opportunity to be heard with such assistance, then it cannot be said that the assistance cannot be of any use when it is not even granted in the first place.

(3)  She was never provided with proper legal and language assistance.  She could not get legal representation as she had limited financial resources.  The determination of the Board was not read to her in her language.  All this is procedurally unfair and should be taken into account.

(4)  The discriminatory act of the authorities that aims only at a quick disposal of the non-refoulement claimants’ claims is unacceptable and is detrimental to the spirit of the judicial system. 

Discussion

16.  When the applicant filed her Form 86, she was out of time by more than three months.  As the Judge rightly pointed out, the delay was not insignificant.  The applicant had neither explained the delay nor identified any ground for seeking relief in her application for leave to apply for judicial review.  The Judge had nevertheless gone on to examine the decision of the Board and found there was no error of law or procedural unfairness or failure to adhere to the high standard of fairness in assessing the applicant’s claim.  The Judge concluded that the intended judicial review application had no prospect of success.  He therefore refused to extend time and dismissed the application. 

17.  The Court, in considering whether to extend time for making an application for leave to apply for judicial review, will have regard to: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of success of the intended judicial review; and (4) the prejudice to the putative respondent if extension of time is granted. 

18.  We agree with the Judge that the delay in question, being more than three months, is not insignificant.  It cannot be disputed that the applicants have given no explanation for the delay.  We have considered the Judge’s analysis of the grounds for judicial review and his reasons for concluding that they have no merits and the intended judicial review has no prospect of success.  We do not discern any error in the reasons or the conclusion of the Judge.  Given that the intended judicial review has no prospect of success, it would be futile to extend the time for applying for judicial review. 

19.  In the circumstances, the Judge did not err in refusing to extend the time for applying for judicial review. We note further that the applicant has not pointed to any error in the Judge’s reasons for refusing to extend time in the applicant’s notice of appeal.  The applicant’s submission given in the skeleton argument are general propositions.  It has not been shown how they relate to the applicant’s case. 

20.  For the reasons given above, we are of the view that the appeal against the Judge’s order dated 21 May 2020 has no prospect of success.  There is also no other reason in the interests of justice requiring the appeal to be heard. 

21.  As the threshold for granting leave to appeal is not met, we refuse the application for leave to appeal and dismiss the notice of appeal dated 2 September 2020.